KMA Model Health Care Protocol on Abuse, Neglect & Exploitation Child, Spouse/Partner, Adult & Elder

III. CONSENT ISSUES

Obtaining a patient's written consent prior to conducting a medical examination or administering treatment is standard practice and should be obtained. Informed consent should be a continuing process that involves more that obtaining a signature on a form.

When in pain and under stress, many patients who have been victimized may not always understand (or remember) the reason for unfamiliar, embarrassing, and sometimes intimidating procedures, and, the significance of these procedures may not be readily apparent, or of immediate concern to some patients. Therefore, all procedures should be explained as much as possible, so the victimized patient can understand what the attending health care professionals are doing and why.

A. Adults

All competent adults have the right to make decisions concerning their health care or treatment, including the right to refuse any treatment. Kentucky law recognizes that medical treatment decisions can be made by others on behalf of an incapacitated person, if appointed before that incapacity, by a durable power of attorney (KRS 386.093) or a person named as a health care surrogate under KRS 311.621, et seq.

If there is a question regarding a patient’s decision-making ability (e.g., dysfunctional), hospital Community Based Services or local DCBS staff could be contacted to assess if guardianship or other services are indicated. See also III. F. Emergency Services/Protection - Adult.

B. Children

Parents or court-appointed guardians of children may consent or refuse treatment for their children or wards. However, the law allows certain information to be gathered as part of a medical evaluation or investigation of a report of child abuse or neglect without the consent of the parent or custodian and may be introduced into evidence in any subsequent judicial proceeding:

As a result of any report of suspected child abuse or neglect, photographs and X-rays or other appropriate medical diagnostic procedures may be taken or caused to be taken, without the consent of the parent or other person exercising custodial control or supervision of the child, as part of the medical evaluation or investigation of these reports. These photographs and X-rays or results of other medical diagnostic procedures may be introduced into evidence in any subsequent judicial proceedings. The person performing the diagnostic procedures or taking such photographs or X-rays shall be immune from criminal or civil liability for having performed the act. Nothing herein shall limit liability for negligence. KRS 620.050(14)

C. Advocates/Support Persons

If a patient, adult or child requests an advocate or support person (see appendix for rape crisis centers and domestic violence programs for phone numbers to access advocates), this person may be allowed to remain with them during the interview. Consent to have a support person present must be given by the patient prior to the introduction of that person in the process. Hospital emergency departments are required (KRS 216B, medical protocol) to call a rape crisis advocate for a sexual assault victim who is undergoing a sexual assault forensic exam. Consent must still be given.

D. Alleges Perpetrators

Consent for evaluation and treatment should be obtained. Where consent is not given a court order may be indicated.

E. Photographic Documentation

Photographs are essential evidence of abuse or neglect. Policy need not require separate permission or waiver for consent to photograph or video. The patient’s decision to allow, or not allow, photographic documentation should be noted in the medical record. With respect to child abuse or neglect, the law allows photographs and X-rays to be taken as part of a medical evaluation or investigation of a report without the consent of the parent or custodian. The physician should however obtain specific consent for a child sexual abuse evaluation, particularly if photographs are to be taken.Refer to III. B. Consent Issues - Child.

If any photographs are to be used for teaching purposes, a signed consent form must be obtained from the patient or other person authorized to give consent. The patient’s identity should be concealed (unless otherwise specified on the consent form) and avoid unnecessary exposure of the patient’s body.

F. Emergency Services/Protection

1. Adults (Adult Protection Act, KRS Chapter 209)

If there is a question regarding a patient’s decision-making ability (e.g., dysfunctional), hospital social services or the local DCBS could be contacted to assess if guardianship or other services are indicated. In rare cases, an adult lacks the capacity to consent to receive or refuse services and may be in a life-threatening situation. These cases almost always involve dependent or elderly adults and are frequently medical in nature.

Involuntary emergency protective services can be ordered by the court and may include:

• hospitalization;
• medical treatment; and/or
• protective placement.

It is imperative for physicians to consult and cooperate with the Cabinet for Health and Family Services, Department for Community Based Services (DCBS ) staff. Pertinent information and records are necessary for DCBS to obtain the court order for medical treatment and services.

These cases are usually life-threatening. ‘Time’ is critical to allow DCBS to effectively intervene on the adult’s behalf.

Physicians should follow their usual procedures for obtaining consent in extraordinary cases (e.g., for severely injured or incoherent persons). Evidentiary information most often requested by the court includes the medical records and/or testimony of the attending physician or specialist of the adult in need of emergency protective services.

“Emergency” refers to an adult living in conditions that present a substantial risk of death or immediate serious physical harm to himself or others. Criteria which must be present to warrant court ordered protective services includes:

• the adult is in a state of abuse or neglect and an emergency exists;
• the adult is in need of protective services;
• the adult lacks the capacity to consent or refuse to consent to such services; and,
• no person, authorized by law or court order to give consent for the adult, is available to consent or refuse consent for protective services.

“Lack of capacity to consent” means a person lacks, because of a physical or mental dysfunction, sufficient understanding or ability to make or communicate responsible decisions for himself (e.g., provisions for health care, food, clothing, shelter, etc.).

Determining an adult’s capacity to consent involves assessing the adult’s decision-making capabilities. Changes in the adult’s pattern of thought, behavior, or self care may be indicative of diminished mental capacity as well as the adult’s overall mental status (i.e., orientation to time, place and person).

Assessment Guidelines for ‘Capacity to Consent’ Does the adult understand the consequences of his decision? Does the adult accept the consequences? Are the adult’s responses to questions rational? Are the adult’s responses contradictory to the adult’s behavior or other statements? Are the adult’s expectations of what will happen in a certain situation within the realm of possibility or contrary to reality? Are the adult’s responses made in context to the situation?

The Cabinet for Health and Family Services may either file a motion (Ex Parte or petition) in Circuit Court (usually) depending upon the adult’s situation and degree of risk.

In either circumstance, the court shall authorize only that intervention which is necessary to remove the “emergency” and which it finds to be the least restrictive of the individual’s liberty and rights while consistent with the adult’s welfare and safety. KRS 209.100(2).

2. Children (Unified Juvenile Code, KRS Chapter 620)

Social workers do not have the authority to remove children and place them in a safe environment without a court order. The one exception: in extreme cases, a social worker, with assistance from law enforcement, can remove a child committed to the state. KRS 605.090(3)

Law enforcement officers can remove children (without consent) and place them in a safe environment when the officer determines (reasonable grounds) a child to be in danger of “...imminent death or serious physical injury or is being sexually abused and that the parents or other person exercising custodial control or supervision are unable or unwilling to protect the child.” KRS 620.040(5)(c)

Medical Personnel. Although medical personnel may not take children into protective custody, they do have the right to temporarily hold the child who they feel is in imminent danger.

72-Hour Hold by Physicians & Hospital Administrators In the event a child who is in the hospital or under the immediate care of a physician appears to be in imminent danger if he/she is returned to the persons having custody of them, the physician or hospital administrator may hold a child without court order provided that a request is made to the court for an emergency custody order at the earliest practicable time, not to exceed seventy-two (72) hours. KRS 620.040(5)(b)

3. Involuntary Commitment

If the physician and/or qualified mental health professional believes that a patient has a mental illness and the patient is a danger to him or herself or others; can benefit from treatment; and for whom hospitalization is the least restrictive alternative mode of treatment presently available then the provisions ofKRS 202A,Involuntary Psychiatric Hospitalization should be followed.

Evaluation of the patient should specifically include assessment into High Risk Indicators for serious physical injury or death (identified previously).

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